Retained EU law and what changed for environmental assessment

Environmental impact assessment and habitats assessment in England still work the way they did before the retained EU law reforms. The regulations are the same regulations, the screening thresholds are the same thresholds, and a competent authority still has to reach the same conclusions. What changed is the interpretive scaffolding around them, and that matters for how you argue a point rather than for which form you fill in.

Practitioners keep being told the reforms swept away environmental assessment. They did not. The more accurate description is that the law was cut loose from its parent directives while keeping its own text intact.

Where this body of law came from

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and the Conservation of Habitats and Species Regulations 2017 were both made to implement European directives. They were made using powers in the European Communities Act 1972, which meant that when the Act was repealed they had to be preserved by other means or fall away.

They were preserved. The regulations continued in force as retained EU law, which the Retained EU Law (Revocation and Reform) Act 2023 renamed assimilated law from the start of 2024. The renaming has no effect on the content.

Two features of the original arrangement did change. The principle of the supremacy of EU law, which required domestic legislation to be read consistently with directive-derived law, was ended. And the general principles of EU law ceased to apply as interpretive tools.

What the reforms did and did not do

The 2023 Act did not revoke the environmental assessment regulations. It revoked a schedule of instruments that did not include them, and it created powers for ministers to restate, revoke or replace assimilated law by secondary legislation.

Those powers are the part worth watching. A power to amend by statutory instrument is a different proposition from a power exercised, and the environmental assessment regime has continued substantially unchanged. Verify the current statutory basis on legislation.gov.uk before relying on any description of it, including this one, because the position can move by statutory instrument without a great deal of publicity.

The practical effects for a planning consultant are narrower than the headlines suggested:

• Screening and scoping under the EIA Regulations 2017 operate as before, with the same Schedule 1 and Schedule 2 structure and the same selection criteria.
• Appropriate assessment under the Habitats Regulations 2017 operates as before, including the integrity test and the derogation provisions.
• Arguments that rely on the supremacy of directive-derived law over later domestic legislation no longer work.
• Arguments that rely on EU general principles, such as the precautionary principle as a free-standing interpretive tool, are weaker than they were, although the precautionary approach remains embedded in the text of the Habitats Regulations themselves.

Interpreting directive-derived provisions now

The regulations still use concepts drawn from the directives. Words such as project, likely significant effects, cumulative effects and integrity of a European site were all shaped by Court of Justice rulings, and the domestic text does not define them exhaustively.

Assimilated case law remains part of the law, so those rulings continue to inform interpretation. What changed is that the higher courts have wider scope to depart from retained case law than they did, under tests set out in the 2023 Act. Departure is possible rather than routine, and the Court of Appeal and Supreme Court have not treated it as an invitation to unpick settled understandings wholesale.

For a planning statement or an appeal, this means directive-derived case law should still be cited, with awareness that its authority is no longer automatic. Cite the domestic regulation first and the case law to help construe it, rather than treating the directive as the operative instrument. That ordering is not a presentational nicety. It is the difference between an argument that works and one that invites a response about the status of the source.

Where this leaves an EIA application

Nothing in the reforms reduces what an Environmental Impact Assessment has to contain. The Environmental Statement must still be prepared by competent experts under the EIA Regulations 2017, and that requirement is in the regulations themselves rather than in any directive. A licensed or competent professional is legally required for this work, and an AI-assisted draft is a starting point for that professional rather than a substitute for them.

Screening opinions, scoping opinions, the content requirements in Schedule 4 and the publicity and consultation arrangements are unchanged. So are the determination periods for EIA development.

For ecology, the sequence from a Preliminary Ecological Appraisal through species surveys to appropriate assessment is unchanged, as are licensing requirements under the Wildlife and Countryside Act 1981 and the Habitats Regulations. Protected species work requires a suitably licensed ecologist, and that has not moved.

The one area where practitioners should be alert is nutrient neutrality and similar catchment-scale issues, where the legal framework has been the subject of repeated proposals for change. Check the current position rather than relying on a note written a year ago.

Environmental Outcomes Reports and the replacement that has not arrived

Part 6 of the Levelling-up and Regeneration Act 2023 contains powers to establish a new system of Environmental Outcomes Reports to replace the existing environmental assessment regimes. The powers are enabling powers, and a replacement system requires regulations that set the outcomes, the assessment process and the transitional arrangements.

Describe this as announced rather than in force. As at the date of publication of this article, the existing EIA and Habitats regimes are the operative ones, and any statement to the contrary should be checked against the commencement information on legislation.gov.uk before it is repeated to a client. The planning law timeline on this site is a reasonable place to follow reform news, and you can keep an eye on it at the planning law updates timeline, although the position should always be confirmed against the primary source.

Verifying the statutory basis before you cite it

A short routine avoids most of the errors that appear in submitted documents.

1. Open the regulation on legislation.gov.uk and check the version in force on the date you need, not the version as made.
2. Read the commencement and transitional provisions of any amending Act before assuming a reform applies.
3. State the instrument by full title and year in the document, so a reader can check it themselves.
4. Where you rely on case law, say what proposition it supports rather than citing it as authority for a general approach.
5. Record the date you checked, because the file will be read months later.

The same discipline applies to conditions drafted on the back of environmental assessment work, where national restrictions on what a condition can do still govern the outcome, as set out in the national restrictions on drafting planning conditions.

The change most likely to affect your next appeal is not a revoked regulation. It is an opponent asserting that directive-derived law no longer has effect, and the answer to that is the regulation itself, in force, with its own text.

This is general guidance, not legal advice. Check the current statutory position on legislation.gov.uk and take advice from a qualified professional before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.